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Civil Procedure Outline 

Basics 

 

Introductory Material

General Rules from Intro

 

Jurisdiction 

Personal Jurisdiction 

 

Basics: Kinds of Jurisdiction

    1. Presence
      1. “tag jurisdiction” allowed
    1. Domicile
      1. Definition: residence with intent to stay
      2. Milliken v. Meyer: allows jurisdiction for person domiciled, even if person is absent from the state
      3. Shaffer v. Heitner: domicile is not always enough for jurisdiction – introduces minimum contacts
    2. Consent
    3. Minimum contacts – since Int’l Shoe, in personam jurisdiction is measured against minimum contacts and fairness
    1. Idea of presence of property in state creating jurisdiction (Pennoyer said this was not enough to create jurisdiction) when the property within the state is the subject of dispute
    1. Shaffer v. Heitner: gets rid of quasi in rem – now need for minimum contacts 

Personal Jurisdiction (and Corporations)

    1. Pennoyer v. Neff: must be in state to be served, about power over an individual, required personal jurisdiction
    1. Power is enough even if person is visitor from out of state if the person is served within the state (Burnham v. S.C.)
    1. First, a state statute (long arm statutes) must authorize power over D
    1. Jurisdiction limited to claims arising from D’s contacts within forum state
    2. Economic benefits speak to minimum contacts
    3. International Shoe Co. v. Washington: (1945)
      1. FACTS: Wash. sued Int’l Shoe, who was an out of state corp. w/ principal business in MO, Int’l Shoe had small number of salespeople in Wash who had limited authority, Int’l Shoe challenged personal jurisdiction b/c they claimed lack of contact w/ Wash
      2. HOLDING: personal jurisdiction existed
      3. IMPORTANCE: jurisdiction if minimum contacts exists and standards of “fair play and substantial justice” are not violated; legislation relates to minimum contacts (two standards treated as meaning the same thing)
      4. Systematic and continuous business activities are minimum contacts.
    4. Shaffer v. Heitner:
      1. FACTS:  stock attached to create jurisdiction
      2. IMPORTANCE: applies minimum contacts/fair play and substantial justice to quasi in rem (quasi en rem on own does not establish min. contacts); when minimum contacts is substitute for physical presence in relation to property ownership, the minimum contact must be related to the litigation
      3. In this case, not enough contact for jurisdiction
    1. When case arises out of a specific in-state activity
      1. Contrast to general jurisdiction where P’s claim has no specific relation to in-state activities
    1. McGee v. Int’l Life Insurance Co. (1957):
      1. FACTS: out of state life insurance policy – business conducted via mail;  insurance co. received benefits in forum state
      2. HOLDING/IMPORTANCE: insurance co. is under jurisdiction of court insured lived in b/c state has right to protect residents and there was in-state contact via mail, extended reach of jurisdiction based on contacts, gives Int’l Shoe long arm
    2. Hanson v. Denckla (1958):
      1. FACTS: trust executed in Delaware by Delaware trust, trust settler (PA domicile), suit brought in FL b/c settler used to live there
      2. HOLDING: no purposeful contacts in FL, no jurisdiction – trustee received no benefits in FL
      3. IMPORTANCE: idea that D must have purposely made contacts (“purposeful availment”) in state and invoked benefits and protection of laws for jurisdiction (redefines minimum contacts concept)
    3. World-Wide Volkswagon v. Woodson (1980): (Stream of Commerce)
      1. FACTS: P buys car in NY, P gets in car accident in OK while driving to new home in AZ; products-liability claim against manufacturer and distributor in OK
      2. HOLDING: no jurisdiction even though it could foresee cars being taken to other states b/c D did not focus on market there (no advertising, etc.) – did not purposely avail self to benefits and protections
      3. Idea is not that D could reasonably foresee its product being brought there, but that it could reasonably foresee being brought to court there
    4. Asahi Metal Industry Co. v. S.C. : (Stream of Commerce)
      1. FACTS:  out of state (and country) parts manufacturer sells parts to another manufacturer, who puts parts into finished product that is sold in forum state – so it sold products to others who placed product in forum state,
      2. HOLDING:  no majority; Plurality said there were minimum contacts, but 8 justices said jurisdiction would be unreasonable b/c of the “fair play and substantial justice” test and the unfairness of brining foreign defender into US court under the circumstances (O’Connor) – ; on the other hand idea that if there is enough of your product put into the stream of commerce, it is foreseeable and you benefit so there is jurisdiction
      3. IMPORTANCE: Seems to separates minimum contacts and fair play and say you need both, minimum contacts not enough
    5. Burger King Corp. v. Rudzewicz:
      1. FACTS: MI residents open BK chain, BK is FL corp. and much business contact in FL, BK sues in FL when D breaches, contract specified forum for future disputes in FL, supported by FL long-arm statute
      2. HOLDING: FL has jurisdiction b/c of minimum contacts and no compelling argument that it would be unreasonable to bring D to FL
      3. supports reasonable foreseeability that party could be subject to jurisdiction, redefines fair play and substantial justice – must incorporate state’s, P’s, and D’s ties to litigation and forum state and minimum contacts are not enough
      4. need substantial inconvenience to be unfair
    1. Contacts so substantial that it does not have to relate to the suit to have jurisdiction
    1. Washington Equipment Manufacturing Co. v. Concrete Placing Co.:
      1. FACTS: D, Idaho corp, obtained required certificate of authority and appointed agent (required by Wash law) so it could pave road in Wash, buys machinery from P in Wash but would not pay, P sues in Wash court claiming general jurisdiction based on certificate and agent
      2. IMPORTANCE: out of state corporation does not submit to general jurisdiction just by conducting business in state and following necessary requirements
    2. Corporation different from person
    3. Burnham v. Superior Court: divorce – man served when temporarily in state; personal jurisdiction over nonresidents physically present in foreign state – matter in question does not have to be related to activities in the state (jurisdiction established either b/c of presence alone or b/c presence establishes minimum contacts)
    1. Establish jurisdiction to get discovery to decide jurisdiction
    1. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee (1982):
      1. FACTS: Ds (group of foreign insurance cos) dispute jurisdiction in PA, would not comply with discovery to establish jurisdiction
      2. HOLDING: court distinguishes between personal (not a right) and subject matter jurisdiction (right) b/c you can waive personal if you do not comply with discovery order to determine jurisdiction and you cannot waive subject matter
      3. IMPORTANCE: courts have jurisdiction to determine jurisdiction
    1. Carnival Cruise Lines, Inc. v. Shute: forum selection clause expanded to consumer contracts (clause on cruise ticket); forum selection clauses are enforced based on fairness and this one seemed fair
    1. Motorist statutes
    1. Interest in forum state of protecting interests of citizens, interest of P of convenient forum, interest of states to enforce their law, extent of inconvenience of D to defend far from home 

Personal Jurisdiction over Corporations (Elaboration)

    1. International Shoe Co. v. Washington: minimum contacts test
    1. Internet: depends on contacts
    1. Stream of Commerce: Out of state corporation makes product, shipped to other state, P want to bring suit where injury occurred
      1. Long-Arm Statutes of states often create jurisdiction
      2. Mere presence of out of state product in state does not create jurisdiction
      3. World-Wide Volkswagon Corp. v. Woodson: company must have made an effort to market in a foreign state for there to be jurisdiction there
      4. Asahi Metal Industry Co. v. Superior Court: minimum contacts present, but no jurisdiction; concept of “fair play and substantial justice” defeated reasonableness of jurisdiction
    1. Burger King Corp. v. Rudzewicz: existence of contract when one party is in forum state leans toward minimum contacts; where D has purposely made contacts in forum state, it is hard to say there is no minimum contacts
 

Challenging Personal Jurisdiction (D)

    1. By appeal after ruling
    1. Collateral Attack:” D challenges jurisdiction in enforcement action (in own state) rather than in original suit and defaults in the other state
      1. Risk: depends on whether home state decides to enforce default judgment
    1. Ignoring suit altogether b/c of belief that there is no jurisdiction
      1. Risk: Default judgment for P, D loses suit without ever having chance to defend
    2. State Court Special Appearance: D litigates jurisdictional issue without subjecting himself to personal jurisdiction merely by appearance
      1. So the jurisdictional issue is the only one raised, if issues of merit are raised the D submits to general jurisdiction and consents to jurisdiction
    3. Federal Court First Appearance
      1. But, under Rule 12(b), D can also raise issue of jurisdiction and merit in federal system
      2. Rule 12(b): D must raise jurisdictional question in answer to complaint or  pre-trial motion before making other motions
      3. D who only speaks to merits and does not address jurisdiction waives right to question jurisdiction
 

Notice

 
  1. Mullane v. Central Hanover Bank (1950): determines sufficiency of notice
    1. FACTS: trust fund attempts to settle accounts, used newspaper for notice, distinction between resident and nonresident beneficiaries, some beneficiaries were known and could have been notified in more productive manner
    2. HOLDING: must actually be able to inform if possible, but limited by reasonable economic considerations – general reasonableness standard considering all factors, publication fine for unknown but not known
  2. Generally, publication is not sufficient notice when it is reasonable to contact the party directly. (Mullane)
 

Long Arm Statutes

    1. Reach out of state to get D under jurisdiction
    1. Not always constitutional
    1. FACTS: D (TX resident) and Browns (FL residents) driving together in Canada, D gave bad directions to Mr. Brown and accident occurred, D sued Mr. Brown in FL, 2 yrs later Mrs. Brown tried to sue D in FL claiming she had submit herself to jurisdiction by bringing other lawsuit, deals w/ FL long-arm statute
    1. HOLDING: No FL jurisdiction, D did not engage in relevant activity there; just b/c she brought suit 2 yrs earlier does not submit her to jurisdiction
 

Venue

    1. Jurisdiction determines state, venue determines judicial district
    1. D’s residence is most important factor
    1. P’s choice ?
    1. Corporations are residents of district where it is subject to personal jurisdiction
    1. If venue is proper but inconvenient, can move to transfer
    1. If venue is improper, can move to dismiss (Rule 12(b)(3))
    1. Dee-K Enterprises, Inc. v. Hevafil sdn. Bhd.:  

Transfer and Forum non Conveniens (Declining Jurisdiction)

    1. Consderations: parties’ convenience, state’s interest in not burdening courts w/ litigation not connected to state
    1. Used mainly in states courts where there is no right to transfer from one court to another
    2. Federal: §1404 makes it inappropriate to dismiss where venue is proper but inconvenient – you then transfer
    3. Piper Aircraft v. Reyno:
      1. FACTS: plane crash where all evidence, relatives of victims in Scotland but laws of Scotland were less favorable to recovery for P
      2. HOLDING: fact that alternative forum’s laws are less favorable to P s not sufficient to deny D’s motion for forum non conveniens; but if alternative forum would give no remedy, there might be case
      3. Ordinarily there is a strong presumption in favor of P’s choice of forum – not honored hen private and public interests point toward trial elsewhere
    1. If venue is proper but inconvenient, can submit motion to transfer
    1. In federal courts, if forum non conveniens doctrine applies, court does not dismiss but transfers to another district
 

Subject Matter Jurisdiction 

 

Federal Question/“Arising Under” Jurisdiction

 
    1. Art. III, §2 - “Arising under the Constitution, laws, or treaties of the United States.” – creates more expansive jurisdiction than USC
      1. Osborn v. Bank of the U.S. (1824):  Congress creates bank and authorizes it to sue and be sued in any circuit court of the US; Court says Congress has the power to create federal jurisdiction anywhere there is appellate jurisdiction; in the bank’s case every action is under U.S. law b/c it’s charter is in U.S. law
        1. idea that “arising under” language in Art. III applies if substantial issues of federal law are raised by any party to a case (different from interpretation under §1331)
        2. expansion of federal jurisdiction
    1. The Constitution gave Congress the power to create lower federal courts.  In doing so, Congress also had the power to define their jurisdiction. 
      1. In creating the lower federal courts, Congress used the same language as in Art. III.  Even with the same language, the scope is narrower than the Constitutional scope.
    1. Well-Pleaded Complaint Rule: Under §1331, the federal question must be in P’s cause of action, not anticipating a defense based on a federal question
      1. Louisville v. Nashville R. Co. v. Mottley (1908): 
        1. FACTS:  D’s given lifetime passes for railroad for settlement of earlier claim; railroad denied renewal of passes; P sued and anticipated a defense involving due process rights
        2. HOLDING: no federal question b/c you can’t use anticipated defense to establish “arising under” jurisdiction, P did not assert a claim “arising under” federal law
    2. Cannot be waived under Rule 12(h)
 

Diversity Jurisdiction

 
    1. Based on domicile, not residence
      1. Gordon v. Steele (1974): diversity existed where student intended to stay in state which differed from home of Ps
    1. Need complete diversity
    2. Domiciliary does not change when you move to a new place if you have no intent to stay there – it stays with old domiciliary even if you have no intent to go back (Mas)
    3. Wife’s domiciliary is that of husband unless it deprives wife of US citizenship (where she is married to foreigner)
    4. Mas v. Perry (1974):
      1. FACTS: P (French citizen, wife w/ MI domiciliary; grad students in LA then moved to IL) sues D (LA citizen) for watching them in two-way mirrors while living in LA as grad students, wife had no intent to stay in LA or move back to MI
      2. HOLDING: diversity jurisdiction for each spouse; Mr. (French and LA); Mrs. (MI and LA) – even though she lived in LA she had no intent to stay, her citizenship did not change b/c she was married to foreigner
    1. Presence of a foreign D does not destroy diversity
    1. When there is an American citizen suing a foreigner, there is diversity
    2. There must be an American citizen in the suit – no diversity if foreigner sues foreigner
    3. Resident alien (living in U.S.) is considered a resident of the state in which he is domiciled
    4. No provision for when a citizen and foreigner sue a foreigner
      1. Saadeh v. Farouki (1997):
        1. FACTS: P (Greek citizen) brings suit against D (Jordanian citizen w/ permanent resident immigration status)
        2. HOLDING: under §1332 permanent resident is considered citizen of state in which citizen is domiciled, court then looks to whether D is citizen of state and says yes under §1332 BUT this allows for a foreign citizen to sue a foreign citizen, which broadens diversity jurisdiction; court looks at intent of law and says that it was not to broaden jurisdiction, so it does not allow lawsuit
    1. State(s) of incorporation
    1. Principal place of business: sometimes where the home office is, other times where the bulk of activity is (only one)
    2. Unincorporated associations and partnerships – consider the citizenship of each member (partner); each member must be diverse from opposition for diversity
      1. Meyerson v. Harrah’s (case 1): wasted time on procedural matter b/c of burden of P to show complete diversity b/c it was a partnership
    1. Single plaintiff w/ multiple claims arising from same event may aggregate claims (?)
    1. Single plaintiff w/ multiple unrelated claims against single defendant may aggregate
    2. Single P cannot aggregate against multiple Ds
    3. Two Plaintiffs w/ claims against a single D may not aggregate if claims are “separate and distinct”
      1. Multiple Ps where at least one P meets amount on own but others do not: courts split whether to allow aggregation, supplemental jurisdiction suggests you can aggregate
      2. Multiple Ps where no P meets amount: generally cannot aggregate
    4. Class action: each class member has the same claim
      1. Case law says each member would have to reach minimum on own, but supplemental jurisdiction may allow aggregation
    5. Counterclaims:
      1. If P sues in federal court for less than amount and D counterclaims for amount that by itself or aggregated to P’s amount reaches the minimum, unclear if aggregation occurs or court must dismiss
      2. If P sues in state court and D counterclaims for over $75,000, P MAY NOT remove to federal court
      3. If P sues for less than amount and D makes permissive counterclaim for over $75,000, D cannot remove
      4. If P sues for less than amount and D makes compulsory counterclaim, some states allow removal to federal court
 

Supplemental Jurisdiction

 
    1. United Mine Workers v .Gibbs (1966): requirement that the state and federal claims must “derive from a common nucleus of operative fact” and must be so closely related that the P “would be expected to try them all in one judicial proceeding.”
    1. Additional party from state claim could have to defend in federal court
    1. When core claim is based on diversity of parties, supplemental jurisdiction is not as easy to get 

Removal

 
    1. Question must appear in P’s complaint
 

The Erie Problem

 
    1. Erie Railroad v. Tompkins:  In diversity cases, federal courts apply state common law on any substantive issue where there is no federal statute on point rather than general/federal common law.
      1. This is to prevent forum shopping (when a P chooses between federal and state court based on system which will be more favorable to his case – if you apply state substantive law it eliminates incentive to forum shop).
    1. Apply state substantive law and federal procedural law
    1. Considered substantive rather than procedural if the issue would affect the result of the litigation (substantive issues follow state law, so if it this would affect the result of the litigation you follow the state law, even if it seems procedural)
    2. Guarantee Trust Co. v. York (1945):
      1. FACTS: P filed claim against D, D moved for summary judgment based on state statute of limitations expiring, P argued that statute of limitations is a procedural issue, so federal common law limits should be applied (no fed. statute on point)
      2. HOLDING: even though statute of limitations may be considered procedural, for the purpose of the Erie Doctrine it was considered substantial b/c it is outcome determinative (P would not have been able to sue at all in state court but had a chance of winning in federal court if statute was ignored)
      3. PROBLEM: outcome determinative test tends to swing too far in the direction of state power b/c most procedural rules affect the outcome of a case, therefore making them substantive for Erie purposes
    3. Byrd v. Blue Ridge Rural (1958): Court begins to retreat from complete acceptance of “outcome determinative” test
      1. FACTS: about whether decision should be made by judge (state law) or  jury (federal law)
      2. HOLDING: federal law governs, strong policy against state rule disrupting judge-jury relationship in federal court, no strong state policy in this case
      3. IMPORTANCE: state decisions that are basically procedural (even though they may affect substantive rights) are not necessarily controlling even if they are outcome determinative; even if a matter is outcome determinative, federal law is applied if a strong federal policy is involved.
      4. balancing test of interest of federal policy and state policy, movement away from state law
    1. Hanna v. Plumer:
      1. FACTS: P followed Fed. Rules procedure for service of process rather than state law in a diversity suit, D claims improper service, issue over which law to follow b/c procedural issue is outcome determinative
      2. HOLDING: application of Fed. Rules appropriate b/c of strong federal policy of bringing uniformity of courts
      3. IMPORTANCE: removed Fed. Rules from scope of Erie;  as long as a Fed. Rule is ok under the Enabling Act and is constitutional, it is not overridden by state policies or laws
      4. Modification of outcome-determination: even when there is not a Federal Rule, state policy may not control; 
      5. Must look at two aims of the Erie rule: 1) discouraging forum shopping 2) avoiding inequitable administration of the law
    1. If a judge can find a federal rule or statute governing a situation it prevails over state practice and Erie analysis is unnecessary (often broad interpretations of Fed. Rules)
    1. Burlington Northern Railroad v. Woods: state law awarded damages to P while Federal Rule could be interpreted to limit damages (but not necessarily); Federal Rule controlled rather than state statute – generous reading of Fed. Rules
    2. Stewart Organization, Inc. v. Ricoh: D tried to invoke forum selection clause (under fed. law) allowing litigation only in NY, P said state law in Alabama (where P brought suit) prohibited such clauses; Federal law governed district court decision rather than state law
    3. Gasperini v. Center for Humanities, Inc.:
      1. FACTS: P won verdict, D said verdict was too high, D claimed state statue allowing review of jury awards applied b/c it was substantive, P argued that it was procedural and federal law applied not allowing review by appeals court
      2. HOLDING: statute not substantive, federal law barring application of state statute BUT under the federal law only an appeals court cannot reexamine jury decision, it is ok for the district court to do so (confusing)
      3. This is an attempt to accommodate Erie by applying federal procedural law in a way that serves substantive aims of NY law
    1. FACTS:  case removed from CA state court to federal court b/c of diversity, D dismisses based on state court statute of limitations, P tries to refile in different MA state court for same cause of action b/c of longer statue of limitations in MA, D tried to dismiss based on res judicata (claim preclusion), P argues that statute of limitations is not a claim preclusive dismissal under CA law
    1. ISSUE: whether dismissal was claim preclusive, what law to use to determine if it was claim preclusive
    2. REASONING: Rule 41(b): no longer necessarily means a judgment “on the merits” is necessarily claim preclusive, looks to 41(a) which says “adjudication on the merits” is opposite of “dismissal without prejudice” (dismissal that does not bar D from returning to same court w/ same claim) – so the dismissal on merits only bars from refiling same claim in SAME court
      1. This is necessary but not sufficient for claim preclusion in other courts
      2. No federal statute/rule speaks to claim preclusive effect of judgment in federal diversity action
      3. Federal court has the final word on federal judgments, including claim preclusion in federal courts, so the S.C. had to determine the federal rule
      4. HOLDING: Court has final say on what federal rule will be, decides that the federal rule in a case on federal claim preclusion will be to apply the law of the state court in the state where the federal diversity court sits
      5. So, the federal rule is to follow the state rule (which does not preclude bringing the case in anther state)
      6. This reflects wanting to deter forum shopping and inequitable administration of the laws
 
 
 

Pleadings 

 

The Complaint

 
    1. States legal theory of liability and relates facts to that law and is reasonably specific
    1. Rule 12(b)(6): failure to state claim upon which relief can be granted (potential response)
    2. Code Pleading:
      1. Code pleading states often have check-a-box pleading forms
      2. People ex. Rel. Department of Transportation v. Superior Court (1992): not enough for “short and plain statement” just to fill out complaint form; must give enough info so that D knows cause of action so they can come up with possible defenses; this occurred in CA a code pleading state
    3. Federal Pleading:
      1. Haddle v. Garrison (1996):  case relating to whether at-will employee can recover for conspiracy (was there failure to state claim where relief could be granted?)
        1. HOLDING: went all the way to S.C. to determine that the employee stated a claim by alleging a conspiracy induced employer to terminate at-will employment, not necessary to suffer injury to constitutionally protected property interest to state a claim
    4. Note: where pleading is inadequate, court usually grants leave to amend
    5. Rule 8(e): Do not have to be consistent in pleading b/c pleadings are filed before discovery so parties may not have full knowledge of facts of case
    1. Rule 11: Lawyer’s obligations/sanctions, purpose to deter improper conduct
    1. Law firm responsible for attorney’s actions except in exceptional circumstances
    2. Business Guides v. Chromatic Communications Enterprises (1991): business guides case – plantings “seeds;” allegations of copying info not well investigated – corporation and lawyers received Rule 11 sanctions for failure to properly investigate the underlying facts of the case
    3. Religious Technology Center v. Gerbode (1994): lawyer filed suit where there was no proximate cause for a damages suit, so he is sanctionable under Rule 11; the lawyer did not know the law in this situation
    1. Fraud
      1. Rule 9(b): Fraud claims necessitate higher pleading standards – need more details than normal in the complaint to let D know what was allegedly fraudulent
        1. detail statement P contends are fraudulent
        2. identify speaker
        3. state where/when statements were made
        4. explain why statements are fraudulent
      2. Olsen v. Pratt & Whitney Aircraft: P did not meet heightened notice requirements in his pleading under Rule 9(b) – his claims lacked fact and were conclusory (P was given chance to amend)
    1. Civil Rights
      1. There is controversy whether govt. lifted state immunity with the 14th Amendment; it is followed that if Congress is crystal-clear that it lifted immunity for agencies of states, then there is no immunity but if it unclear there is immunity
      2. 42 U.S.C. § 1983: allows people to sue govt. officials that deprive individuals of civil rights, does not create heightened pleading standard (see below)
      3. Liability of Govt. Officials a) “liable if their actions or orders violate constitutional rights but b) enjoy ‘qualified immunity’ if those actions took place under a reasonable misapprehension of the law.”
      4. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit (1993):  police entered house looking for narcotics; court ruled that 42 U.S.C. § 1983 does not create a heightened pleading standard (in this case against a municipality); applied “short and plain statement” standard
        1. applies to immunity for municipalities, but does not address individual defendants
        2. applied to disallow court created heightened pleading standards in civil rights cases
    2. Special Damages (Rule 9g)
 

Burdens

 
    1. Standard is preponderance of the evidence (probability > .5)
    1. Asking judge to go to next step (summary judgment, directed verdict, etc.)
    1. Gomez dealt w/ qualified immunity: note that standards for qualified immunity are no longer what they were in Gomez; they are currently whether a reasonable person would know they were violating someone’s civil rights
 

Responding to Motion

 
      1. Pre-Answer Motions
    1. Admit to truth, but deny liability b/c of other facts
    2. Layman v. Southwestern Bell Telephone Co. (1977): if D will defend on evidence not mentioned in P’s complaint, the D must give this affirmative defense in the answer so that P can prepare for the defense (general denial not adequate).
    1. Rule 7(a): required of P only if the answer from D contains a counterclaim
      1. Beeck v. Aquaslide ‘N’ Dive Corp. (p. 470): slide manufacturer who answered and then wanted to amend after statute of limitations ran out when they realized they were wrong D; whether to allow amendment is at trial court’s discretion; court upheld trial court’s decision to allow amendment
        1. This is not the standard outcome – usually courts will not mess with statute of limitations
    1. Statute of Limitations
      1. Amendments must relate back to the original pleading once the statute of limitations has run out
      2. Rule 15(c): Matter relates back if
        1. it “arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading”
        2. when “relation back is permitted by the law that provides the statue of limitations applicable to the action”
      3. Moore v. Baker: issue regarding whether original complaint gave notice to D of the claim being asserted at trial; amendments to complaint MUST arise out of same conduct, transaction, or occurrence as the claims in the original complaint (must relate back) and original pleading must have given adequate notice to D of claim asserted in amended complaint; in this case they did not, so they were barred b/c statute of limitations ran out
      4. Bonerb v. Richard J. Caron Foundation: even if statute of limitations has run out, an amendment is allowed if it relates back to the original set of facts set forth in the claim; in this case the amendment comes from same set of facts so it is allowed
 

Discovery 

 

Elements: Relevance and Privilege

 
        1. Relevance
      1. Relevant: Links evidence to fact (relevant if it increases or decreases likelihood that a fact is true)
        1. more about what is likely to lead to relevancy than actual relevancy
      1. Materiality: asks what is the relationship to relevant info (above) and the cause of action (elements and affirmative defenses)
      2. Incompetency: evidence that is relevant and material, but not admissible b/c of other rules (e.g. privilege)
        1. Privilege
      1. But privileges exist
    1. The theory behind privilege is that there are greater societal goods (such as the sanctity of marriage and trust in the marriage relationship
    2. Block info from a particular source; such as attorney-client, doctor-patient, psychotherapist-patient
    3. 26(b)(3) Work Product Doctrine: privilege exists to protect attorney’s “work product”
 

Confidentiality/Privilege

3 Sources of Confidentiality:

    1. Keep confidential business affairs of client
    1. Blanket responsibility to keep info about client confidential
    2. Most important: responsibility to client
    3. Least important: gives way to court order (discovery)
    4. There might be ethical responsibilities to disclose – like when you know your client is going to kill someone
      1. Even so, this hurts confidentiality; what if lawyer gets the person in therapy and the client only confided in lawyer b/c he knew it would be confidential
      1. But the common law has developed rule of attorney-client privilege
        1. protects confidential communications between client and lawyer for the purposes of obtaining legal advice
          1. must think they are lawyer
          2. must obtain confidence
          3. must need legal advice
    1. History: interested parties could not testify b/c of own interests, but the lawyers would need to know the fact
    1. So if the lawyer then had to testify, the person was not protected
        1. Upjohn case: client is the company, so who is the client in relation to confidentiality?  Who gets privilege? 
        1. Exceptions of privilege
          1. Crime and fraud: if you solicit advice to perpetrate current or future crime, it is not privileged
          2. If you do not maintain information as confidential, it is not privileged
      1. Privileged info is not discoverable
      2. Other privileges: psychiatrist-patient, spousal, priest-penitent
          1. Gives lawyer incentives to collect information, do investigation
          2. If oppositional sides can request all the opposition’s materials, then one side can end up doing all the work.  After once, lawyers will stop doing work b/c either the other side will do it or they will have to turn it over to the other side.
          1. Necessary people such as translators and paralegals are also protected if they work directly for the lawyer 

Methods

            1. Interrogatories
          1. Depositions 
      1. So big corporations cannot drain resources of smaller adversary
        1. Deposition on written questions
        1. Inspection Rules
      1. Issue of privacy, need a good reason for this request
      1. Requires court permission and meeting standards
 

Privacy

        1. Rule 26(c): gives power to judge to enter “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”  Also, “a party is entitled to request a protective order to preclude nay inquiry into areas clearly outside the scope of appropriate discovery.”
        2. Stalnaker v. Kmart Corp. (1996): sexual harassment case; question of discovery over info about sexual relationships of D with other employees; only applicable evidence is of relationship that could relate to employment issues, otherwise the relationships are irrelevant and undiscoverable
        3. Schlagenhauf v. Holder (1964): request of physical and mental examinations; Rule 35 requires parties make affirmative showing that 1) P’s mental or physical condition was in controversy and 2) that there was good cause for requested examinations; failed to do so in this case
        4. Ask whether the probability of the information leading to evidence is sufficiently high given the probability of embarrassment?
        5. Circularity issue: how do you show “good cause” without discovery?  Need discovery for good cause shown
 

Discovery in Adversary System

    1. Standard for expert: whether expert is based on knowledge (gatekeeper to keep out junk science)
      1. Old standard was “Fry” test:  whether expert worked in established field
    1. 26(b)(4): must disclose experts that will testify at trial
      1. Exceptions for non-testifying experts: Rule 35(b) or exceptional circumstances under 26(b)(4), allows discovery of non-testifying expert reports when the expert is an examiner and the info cannot be obtained inn another way (see below)
    2. Thompson v. The Haskell Co. (1994): non-testifying expert witness was psychologist who did psych evaluation on  P after alleged incident; discoverable b/c info could not be obtained by other means (exception to 26(b)(4))
    3. Chiquita International Ltd. v. M/V Bolero Reefer (1994): non-testifying expert does not become fact witness when P’s witness surveyed boat and gear and D had no do it; D cannot discover info from expert just because they failed to send person to collect facts; company had opportunity to gather facts for itself and did not do so
    1. Who to send the deposition to – sue a corporation but someone must act for them
    1. Rules 37(b)(2), 26(g): Sanctions
      1. Again with a corporation you have the problem of who to sanction on the corporation’s behalf
    1. Chudasama v. Mazda Motor Corp. (1997): case where P tried to discover EVERYTHING about Mazda and district court would not rule on anything; once compelled to discover, Mazda could not produce info in time and was sanctioned (Rules 37 and 26); court ruled the sanctions were too severe based on district court’s lack of decision-making throughout case
 

Burdens

    1. Beyond a reasonable doubt (criminal)
    1. Preponderance of evidence (civil): more probable than not
      1. Usually Plaintiff’s burden (following burden of pleading)
        1. except D for affirmative defenses
      2. Equipoise is only case that comes out differently based on the burden of persuasion
      3. Reid v. San Pedro, L.A. & Salt Lake Railroad (1911): escaped cow gets killed, proof does not conclusively show how he escaped; D cannot be liable b/c inference is just as strong that it was D’s fault as it is that it was not
    1. If there is no evidence, party with burden of production loses
    1. In Reid, P could not produce evidence that lead to rational conclusion case should go her way
    1. Reasonable person standard for probability, not the judge’s opinion
    1. Reasonable ranges (when P has burden of production)
      1. 0 to < .5: summary judgment or directed verdict against P – he has been heard and no reasonable person could believe the case
      2. <.5 to >.5: burden is within range;  move to next step
      3. >.5 to 1:
        1. if you haven’t heard from D you might need response to summary judgment motion
        2. if you have heard from everyone, summary  judgment or directed verdict in favor of P
      4. Remember that judges do not have incentive to clear their dockets, so they might send obvious trials to jury with a secure outcome
 

Summary Judgment

    1. Legal and factual merits of the case
    1. Designed to prevent futility of trial
    1. Different from Adickes which set the standard that whoever was moving for summary judgment had to go through all the elements and negate them
    1. Question of inference: identical statements from witnesses could be made up or evidence of truth
 

Controlling Juries

 
    1. Rule 50: “judgment as a matter of law;” collapses directed verdict and j.n.o.v.; moving party thinks opposition has failed to make case, asks judge to take case away from jury to prevent verdict
      1. Reasonable person’s range (line of probability)
      2. Potential problem: reasonable person could disagree about range of reasonableness
    1. Same as summary judgment, except it is after the case has started
    2. j.n.o.v. is a review of the directed verdict – can’t ask for j.n.o.v. without having asked for directed verdict
    3. No judgment on credibility of witnesses
      1. But it doesn’t make sense b/c if you didn’t judge credibility you would never have summary judgment, directed verdict, j.n.o.v.
    4. Pennsylvania Railroad v. Chamberlain (1933): collision of cars, question of liability of employer; witnesses all agree except one; idea that no reasonable person could find D guilty
      1. Not supposed to make judgments on credibility of witnesses, but court seems to here
    1. Rule 51: mechanism by which jury instructions are created – lawyer needs to put judge on notice as to instructions you want and must object to other side’s jury instructions
    1. Balance audiences: juries and court of appeals; b/c of review of court of appeals you often get incomprehensible jury instructions
    2. Judge does not want to go out of bounds of jury instructions b/c he does not want to get overturned
    1. Part of Rule 50; prohibited because of Seventh Amendment, which precludes review of jury finding
    1. Now the j.n.o.v. is a reviewed directed verdict – you can only ask for it if you moved for a directed verdict before jury finding
    2. Results in entry of judgment for loser of jury’s verdict
    3. Ask for j.n.o.v. and new trial together
    1. Rule 59
    1. Granted if judge concludes process leading to verdict was flawed; verdict against the weight of the evidence
    2. Different standard (lower) than other analysis we’ve used, otherwise you would have earlier granted summary judgment, directed verdict, etc.
    3. Must be a case in middle range (crossing .5) of which reasonable person would do
      1. kind of circular reasoning b/c you are saying that a reasonable jury could not have decided another way but you need a jury to decide the case
    4. Can’t grant a new trial just because you disagree (unclear standard)
      1. Lind v. Schenley Industries (1960): review of j.n.o.v. and new trial; can’t grant b/c you would have different opinion; basically says there is no set standard for granting new trial; court ruled judge abused discretion in granting new trial
    1. Remittitur: Judge can order a new trial unless P agrees to accept reduced damages
    1. Additur: increasing damages; unconstitutional (violates Seventh Amendment)
    1. Peterson v. Wilson (1998): court met with jury after verdict; can’t review jury process; can’t use juror’s testimony to impeach a trial 

Incentives to Litigate 

 

Substitutionary Remedies

    1. Make the P whole
    1. Compensate P, not punish D
    2. Usually awarded as damages to average P, not specific P
    3. United States v. Hatahley (1958): burros taken by govt. and sold to glue factory; considered replacement cost at market value of burros; said it was wrong to award blanket amount for pain and suffering rather than look at individual, so it awarded no money
      1. Principal is to restore P to position he would have been in if not for other party – replacement cost (market value)
      2. Market approach assumes everything has quantifiable value - ignores sentimental value
    4. Rule 9(g): special damages have to be particularly plead
    1. Aimed at punishment, usually needs willfulness, malicious intent, bad faith
    1. P can introduce evidence re: D’s worth to figure out what is necessary to make it  hurt
    2. Usually related to Due Process Claims – often challenged on due process grounds
    3. Following cases do not set nation-wide standards (only state standards), but are widely followed:
      1. The trend is to limit damages to particular instance at court
    4. Honda Motor Co. v. Oberg (323): reversed law denying judicial review for punitive damages; said punitive damages are arbitrary so you have to be careful not to violate due process clause (deprivation of property); need judicial review as safeguard
      1. No definition of what is reasonable
    5. BMW of North America v. Gore (1996): review of punitive damages; state cannot attempt to alter a company’s nationwide policy (can’t infringe on policies of other states with class action suit); D did not have adequate notice of magnitude of sanction that could be imposed on it; used following three factors for test:
      1. Degree of reprehensibility
      2. Disparity between harm or potential harm suffered by P and punitive damages award
      3. Difference between remedy and civil penalties authorized or imposed in comparable cases
    6. State Farm Mutual Automobile Insurance Co. v. Campbell (2003); punitive damages excessive based on criteria from Gore
      1. Limits huge verdicts
    7. Challenges to Punitive Damages:
      1. Failure of adequate procedural review (Honda)
      2. Three substantive variables (BMW and State Farm)
    8. Balance putting company out of business with deterrence: if you bankrupt a company you have less money for future claims that might have arose
    1. Awarded to prevailing party under Rule 54(d) 

Specific Remedies

    1. Not always the case though
    1. Order a person to do something or not to do something
    1. Must be prepared to enforce, usually by contempt proceedings
    1. Covenant must be reasonably necessary to protect employer’s legitimate interest
    1. Covenant must be reasonable in terms of temporal scope
    2. Covenant must be reasonable in terms of geographic scope

Declaratory Relief

    1. Do if you want to clarify in order to avoid risky error
    1. Limited to actual cases, not hypotheticals; answers a question
 

Financing Litigation

    1. Each party pays its own legal fees
      1. Injured party more likely to sue, even if case is not incredibly strong
      2. Supporters say it allows poor people or people with weaker claim to sue without deterrence
      3. Idea that everyone deserves their day in court
    1. Compensates the winner; loser pays damages and costs of litigation
      1. Less likely to sue with weak claim
      2. Supporters claim it discourages frivolous lawsuits
    1. Bear the real cost of your own litigation
    1. Pay for your witnesses, your discovery, etc.
    2. This could help small P against big corporate D: if corporate D made a lot of discovery requests, they would have to pay the cost
    3. But on the other side, the little P will have to bear costs if it wants to make a lot of discovery requests
    1. Hourly Rate
    1. Transaction Rate: certain amt/transaction
    2. Litigation Insurance: pools $ w/ others to pay for particular type of coverage
    3. Contingent Fees
      1. Lawyer agrees to provide representation with fee from proceeds of a settlement or recovery
      2. Often used with Ps seeking recovery for personal injuries
      3. Either take wide variety of cases, some with large prospect of recovery; or screen well and take only really strong cases
      4. Forbidden in American criminal proceedings; illegal in British system
      5. Incentives: what may be best for lawyer’s recovery may not be what is best for client
    1. What may be best for lawyer may not be best for client
    1. Rule 68: consequences for P that refuses what turns out to have been a good offer
    2. Lawyer and Client Relationship
      1. Evans v. Jeff D. (1986): class action case for mentally handicapped, lawyer took settlement against Legal Aid’s policy even though clients would not recover attorney’s fees, district court approved settlement
        1. court defines ethical dilemma in reasonable way
 

Provisional Remedies

          1. Seizure of property
      1. HOLDING: Court said this is not allowed, person entitled notice and opportunity to be heard before loss of rights
      1. IMPLICATIONS: increases cost of seller in providing credit to buyer, ends up increasing purchase price – price ends up shifting to society rather than company; cost also goes up b/c you will receive notice that you will lose property, take worse care of it, and company will have to charge more
      2. BUT: what about implications of fairness?  Would we want to bear this extra cost to live in a fair society?
 

Resolution without Trial

            1. Rule 55: Default judgments
      1. As the P, if you have not heard from D you can make it a public issue and try to force D to comply or wait and if D does not cooperate they lose
      1. Clerk enters finding of fault
      1. Judge enters judgment of fault
      2. If you get default, you enter it for sum in complaint
      3. If sum is ambiguous, 55(2), you have to make a determination.  This requires notice and the opportunity for the other side to come back into the case to contest damages even though they defaulted in liability
      1. HOLDING: even though he had no meritorious defense he still had right of notice; could have potentially settled rather than have default against him and land sold
      1. Shows importance of procedural due process issues
      1. Rule 41:Voluntary dismissal by P
      1. Never would have happened if D filed answer and P could not have voluntarily dismissed
      1. Settlement
      1. P will not want to settle “all claims” b/c they might not know of them all
      1. D will want to settle all claims
      2. Matsushita Electric Industrial Co. v. Epstein: settlement in state court covered all claims, both state and federal; issue over whether  a court with no jurisdiction over a claim (the federal claim) could settle it
        1. idea that independent contract could have settled one claim, but once you are in court system should this be allowed
        2. court enforced settlement, but decision really could have gone either way
      1. But this also means there is more publicity
    1. Can happen at any time, even after verdict (see below)
    2. Private v. Social interests
      1. Kalinauskas v. Wong: sexual discrimination case settled with promise of confidentiality, issue over whether in later case P can testify; court allows testimony but no specifics about settlement as a compromise
        1. interests of lawyer may conflict w/ party – lawyer may be a repeat player w/ an interest in allowing testimony again, whereas P might just want to get paid off
        2. everyone tries to optimize their interests
        3. long v. short term goals
      2. Neary v. University of California: settlement after jury verdict, appellate court would not allow the settlement, this was abuse of discretion and settlement ultimately allowed
        1. personal matter with no ramifications for society
      3. U.S. Bancorp Mortgage Co. v. Bonner Mall: again parties reach settlement that makes case moot, P requested appellate court vacate trial court judgment but would not, different decision from Neary
        1. interests different b/c this case asks for modification of the law and would have ramifications on society if allowed – do not negotiate over structure of a law in litigation, that is what legislature is for